64 N.Y.S. 993 | N.Y. App. Div. | 1900
There are two actions involved in this review. Both of them aré in replevin, and they were tried together, the issues being practically the same. Upon the trial the jury found in favor of the defendant, and judgments were entered accordingly. This appeal is from the judgments, and from an order denying a motion for a new trial,-the-principal questions being upon the competency of the evidence upon which the jury was permitted to jiass judgment in reaching its verdict. ■
Morris Shidlovsky, the plaintiff, is the surviving partner of the firm of Morris Shidlovsky & Brother, the defendant being Amelia Gorman, as executrix under the 'last will and testament of John J. Gorman, late sheriff of New York county. Shidlovsky & Brother were engaged in business in the city of New York as dealers in cloaks, etc. Prior to the',18th day of October, 1893, Cohen & Rosenfeld (the former being related to one of the mefnbers of the
The issue raised by the pleadings was that of the plaintiff’s title to the goods, the only suggestion of fraud being that “ said goods and chattels so attached as aforesaid were, at the time of said attachr ing, the property of the said Jacob Cohen and Moses S. Rosenfeld', or that they had a leviable intei-est thei'ein, or that said goods and cliattels were liable to be levied upon and taken under and by virtue of said warrant of attach 2nent.”
The trial proceeded, however, upon the theory that the defendant might show a condition of affaii-s to bring the case within the provisions of the Revised Statutes (2 R. S. [9th ed.] 1886, chap. 7, tit. 2, § 5), which provides: “ Eve2y sale made by a vendo2', of goods and chattels in his possession, or under his control, and every assignment of goods and chattels by way of 2nortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delive2’y, and be followed by an actual and continued change of possession, of the things sold, mortgaged;or assigned, shall be presumed to be fraudulent and void, as against the credito2-s of the vendor, or the creditoi’s of the person 2naking such assignment, or-subsequent purchasers in good faith; and shall be conclusive evi
But, should it be conceded that these declarations of unknown persons constituted a part of the res gestae of the case, and were, therefore, admissible in evidence, the error in admitting Exhibits G and H, purporting to be statements made by the R. G. Dun Commercial Agency, reflecting upon the character of one of the members of the firm of Cohen & Rosenfeld, would be sufficient to demand a reversal of the judgments. It was stated in these exhibits that “ Cohen was at one time in business at 51 Canal street, where he failed in 1879 and was harshly criticised at the time. * * * We learn that they are trusted moderate amounts by some good houses and considered a fair risk, but a failure of Cohen’s in 1879 is not forgotten and causes a lack of confidence with some.” This refers to a time fourteen yeai-s prior to the date of the transaction in controversy, and the respondent does not seriously contend that the matter had any bearing upon the question at issue, or that it was in any degree competent; but it is urged that it found its way into the record inadvertently and that it ought not to be allow'ed to defeat the judgment. The plaintiff objected to its introduction and took an exception to the refusal of the court to exclude the matter, and as it could not have failed to be prejudicial to the plaintiff, we are of opinion that he cannot be called upon to suffer the ills of this error because the defendant may have inadvertently put more in evidence than was intended. ' But the evidence is improperly in the
The -conclusion which we have reached in respect to the above questions makes it unnecessary to continue the -consideration of the-other questions presented by the record and the elaborate briefs of' counsel. There can be no doubt that the plaintiff, acting in good faith, had a right to accept the stock of goods owned, by Cohen &r Rosenfeld in part payment of a bona fide existing indebtedness,, even though he knew that the firm was insolvent, and that by taking these goods he would be depriving the other .creditors of. the means of collecting their debts; all that the law requires of' him is that he shall not have been a party to an intended fraud upon the part of Cohen & Rosenfeld (Galle v. Tode, 148 N. Y. 270, 279). and the legal evidence in the case does not establish such relation between the plaintiff and Cohen & Rosenfeld.
The judgment and order in each action should be reversed, and a new trial granted, costs to abide the event.
All concurred.
Judgment and order in each action reversed and a new trial granted, costs to abide the event.